1.1 In these Conditions:
1.1.1 the following expressions shall have the following meanings:-
1.2 The legal construction of these Conditions shall not be affected by their headings.
1.3 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce 2020 or any subsequently published set of those rules as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
2 Quotations, orders, formation of Contract
2.1 Any Contract for the sale and purchase of any Good and/or Services shall be on these Conditions to the exclusion of all other terms and conditions, including any terms or conditions which the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents or emails of the Buyer that is inconsistent with these Conditions.
2.2 No part of the Website or any quotation given by the relevant Company to the Buyer, constitutes a contractual offer, capable of acceptance. Quotations shall be valid for a period of 30 days after the date of its issue, provided it has not been withdrawn or varied by the relevant Company by that date.
2.3 The Buyer’s Order (including where applicable, those placed via the Website) constitutes a contractual offer by the Buyer to purchase the Goods and/or Services in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of any Order and any applicable specifications which the Order is subject to, are complete and accurate.
2.4 The Order shall only be deemed to be accepted when the relevant Company issues a written acceptance of the Order, by way of an order acknowledgement, or when the relevant Company delivers the Goods and/or provides the Services to the Buyer (whichever is earlier), at which point a Contract shall come into existence.
2.5 For the avoidance of doubt, these Conditions apply to all of the Company's sales with the Buyer. Each order acknowledgement shall in each instance constitute a separate Contract incorporating these Conditions.
2.6 Company employees or agents are not authorised to make any representations about the Goods. Any representations made concerning the Goods shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of the relevant Company.
2.7 Sales literature, price lists and other documents issued by the Company in relation to any goods and/or services (including those on the Website) are subject to alteration, without notice and do not constitute offers to sell goods which are capable of acceptance. Any typographical, clerical, or other accidental errors or omission in any sales literature, quotations, price list, order acknowledgements, invoices or other documents or information issued by the relevant Company shall be subject to correction without any liability on the relevant Company.
2.8 Any samples, drawings, descriptive matter or advertising produced by the relevant Company and any descriptions or illustrations contained in the relevant Company’s catalogues or brochures, whether on the Website or otherwise are produced for the sole purpose of giving an approximate idea of the goods referred to in them. They shall not form part of the Contract, nor shall they have contractual force.
2.9 No order which has been accepted by the Company may be cancelled or varied by the Buyer except with the agreement in writing of the Company on the terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including cost of labour and materials used), damages, charges and expenses incurred by the Company as a result of such cancellation and/or variation.
2.10 The Company can cancel a Contract, without liability to the Buyer on any basis, provided that written notice is given to the Buyer as such prior to the delivery of the relevant Goods and/or Services.
2.11 Any advice or recommendation given by the Company or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed by an authorised representative of the Company in writing, is followed or acted upon entirely at the Buyer's own risk. The Company shall not be liable for any such advice or recommendation which is not so confirmed.
3.1 Subject to Condition 3.2 the prices for the Goods ordered by the Buyer are those as set in the order acknowledgement.
3.2 The Company shall have the right at any time, by giving notice to the Buyer, to increase the price of the Goods and/or Services to reflect any increase in the costs to the Company which is due to any factor beyond the control of the Company (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions.
3.3 The price, unless otherwise stated in the order acknowledgement, is exclusive of,
4.1 Subject to any special terms of the Contract agreed in writing by the Buyer and the relevant Company, the Company shall on or at any time after dispatch of the Goods or completion of the Services, invoice the Buyer for the price and all other sums due in respect of the sale and delivery of Goods.
4.2 Payment for Goods (together with any related VAT and other charges), which are purchased online through the Website must be paid in advance and the Buyer will be prompted to pay during the ordering process.
4.3 Subject to any special terms of the Contract agreed in writing by the Buyer and the relevant Company payment shall be made in cleared funds by bank transfer, credit card or by cheque within 30 days of the date of the Company’s relevant invoice for such Goods and/or Services. All amounts due shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law.
4.4 If Goods or Services are to be delivered/carried out by instalments, the Company shall be entitled to invoice each instalment as and when delivery is made and/or the relevant Services are carried out and payment for all instalments shall be due notwithstanding the non-delivery of other instalments or other default by the Company.
4.5 Time for payment shall be of the essence. If the Buyer fails to make any payment on the due date for payment, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to, cancel the Contract or suspend any further deliveries to the Buyer, appropriate any payment made by the Buyer to such Goods (or the goods supplied under any other contract between the Buyer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Buyer); and charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent above The Bank of Scotland base rate for the time being in force, accruing on a daily basis until payment in full is made. As an alternative, the Company also reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4.6 All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract notwithstanding any previous agreement or arrangement or provision to the contrary.
4.7 The Company reserves the right on giving the Buyer written notice to suspend, amend or revoke any credit terms offered from time to time to the Buyer in circumstances where the Buyer is late in making payment for Goods ordered through the Company.
5.1 Delivery of the Goods shall take place and risk in the Goods will pass in accordance with Incoterms where applicable and as set out in the order acknowledgement, otherwise, delivery of the Goods shall be made by the Company delivering the Goods to the place specified in the order acknowledgement or if no place of delivery is specified, by the Buyer collecting the Goods at the Company’s premises at anytime after the Company has notified the Buyer that the Goods are ready for collection. If the Goods are being dispatched by or on behalf of the Company to the agreed location of the Buyer, delivery will have taken place at the point the Goods are unloaded at that location. If the Goods are being collected for dispatch by or on behalf of the Buyer at the premises of the Company, delivery will take place at the time specified in the order acknowledgement (whether or not the Goods have been collected) or in the absence of such an agreed time, at the point the carrier begins to load the Goods.
5.2 The Company reserves the right to suspend dispatch of any Goods or suspend making them available for delivery on giving the Buyer written notice as such where any amounts remain owing by the Buyer to the Company.
5.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be of the essence. The Goods may be delivered by the Company in advance of any delivery dates upon given notice to the Buyer.
5.4 Subject to the other provisions of these Conditions, the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract.
5.5 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.6 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
5.7 If the Buyer fails to take delivery of the Goods or any part of them on the delivery date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Company shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 5.1 risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Company all costs and expenses including storage and insurance charges arising from such failure.
5.8 The Company shall not be liable for any costs incurred for whatever reason after delivery of the Goods is deemed to have taken place. Where the Goods are sold inclusive of any or all of the freight, handling, port or insurance charges, any increases in, or in the rates for, such charges arising after the date of the Contract and before the Goods are delivered or arising through deviation to a new port or airport necessarily or at the Buyer’s request or through any delay however caused shall be for the Buyer’s account subject to the absolute discretion of the Company.
6 Risk and Title
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer in accordance with the relevant provision of Incoterms or where Incoterms do not apply:
6.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until:
6.3 Until such time as the property in the Goods passes to the Buyer:
6.4 Subject to clause 6.5, the Buyer may resell the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Buyer resells the Goods before that time it does so as principal and not as the Company’s agent; and title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.
6.5 At any time before title to the Goods passes to the Buyer, the Company may:
6.6 Where the Buyer resells the Goods and payment to the Company is still to be made, the Buyer shall hold the proceeds of any resale on trust for the Company in a separate account in the joint names of the Company and Buyer and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties, until such time that all money owing by the Buyer to the Company has been paid.
6.7 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Buyer does so all money owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
6.8 To give full effect to this Condition 6, the Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7 Force Majeure
7.1 The Company shall be under no liability for any delay or failure to perform in the event that the manufacture, supply or delivery of the Goods or Services is prevented or delayed by any act or circumstances beyond the Company’s reasonable control including but not limited to, pandemic, epidemic, Act of God, legislation, governmental action, acts of terrorism, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a trade dispute or owing to any inability to procure materials required for their performance of the Contract or any other event that is beyond the control of the Company.
7.2 The Company shall notify the Buyer of any circumstance arising under Condition 7.1 and if such circumstance prevails for more than 35 days after the date of the notice, then either party shall have the option by giving notice in writing to the other to bring the Contract to an end.
8 Specifications and Intellectual Property
8.1 To the extent where Goods are supplied to the Buyer's own specification (including where standard goods of the relevant Company are altered in accordance with the Buyer's instructions), the Buyer warrants and undertakes full responsibility for the suitability and fitness of the specification, pattern or design and that such specification, pattern or design does not infringe any patent, trade mark, registered design, copyright or any other proprietary right of any third party and the Buyer shall indemnify and keep the Company indemnified in full against any loss, damage or expense whatsoever (including costs) which the Company may incur in or arising from the performance of the Contract by reason of any infringement of any such patent, trade mark, registered design, copyright or any other proprietary right
8.2 The Company reserves the right to change the Buyer’s specification as required to ensure that the Goods comply with any health, safety or other statutory or regulatory requirements or provisions and no such change by the Company will constitute a breach of contract or impose upon the Company any liability whatsoever
8.3 Unless otherwise agreed in writing, the Company will be the sole owner of all inventions, formulations, tools, patterns, designs or other similar items and the copyright in all documents and drawings made or produced by it in preparing a quotation for the Buyer or in the course of work on any Contract with the Buyer.
9.1 Without prejudice to any other rights or remedies to which it may be entitled under the Contract, the Company may terminate the Contract and any other Contracts which are in place between the Company and the Buyer with immediate effect by giving written notice to the Buyer if:
9.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods and/or Services under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 9.1.1 to clause 0, or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under the Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
9.5 Termination of the Contract, however arising, shall not affect any of the Company’s rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10 Inspection and Liability
10.1 Subject as provided in these Conditions, the Company warrants that the Goods and/or Services will comply in all material respects with the specifications set out in the Contract and be free from defects at the time of delivery and for a period of 2 months thereafter. The Goods are of a highly specialised nature and must be treated with the utmost care. The Buyer is under a duty to inspect the Goods on delivery or on collection as the case may be. Where the Goods cannot be examined the carrier’s note or such other note as appropriate shall be marked as “not examined”. Any discrepancies/shortages should be notified to the Company immediately. If any damage is noted on packaging this must be recorded at time of signing for receipt of that delivery. The Buyer undertakes to ensure that all Goods are unpacked and handled only by persons qualified to deal with such specialised products, to safeguard against injury to the Goods or to the Buyer's personnel
10.2 The Buyer shall be under a duty to inspect the Goods/Services and carry out all necessary and appropriate and proper tests to ensure the Goods/Services conform with the descriptions and specifications as set out in the Contract within 3 days of delivery. The Company shall be under no liability for any nondelivery, shortages in quantity of units delivered, defective Goods/Services, non-conformity to description or partial loss or damage to Goods, that would be apparent on reasonable careful inspection or proper and appropriate testing, if the terms of this Condition 10 are not complied with and, in any event will be under no liability:
10.3 Subject as expressly provided in these Conditions, all warranties, conditions, or other terms whether implied by statute or common law or express as to quality, condition, description, compliance with sample or fitness for purpose are excluded to the fullest extent permitted by law. The Company shall not be liable to the Buyer by reason of any representation or any express or implied warranty, condition or other term or any duty at common law or under statute or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation, loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer. It is in all cases the responsibility of the Buyer to ensure by testing or otherwise that the Goods are fit and suitable for the purposes for which the Buyer requires them in the conditions in which they will be used. The Company shall be under no liability of any description to the Buyer if the Goods prove to be unsuitable for whatever reason for application or use notwithstanding that the Company may, at the request of the Buyer, have given in good faith technical or other advice in relation to the proposed application or use of the Goods. The Buyer shall ensure that, any use or sale of the Goods by the Buyer is carried out in accordance with any competent governmental or regulatory authority (where applicable) and that the storage and handling of Goods is carried out in accordance with any guidance and/or directions by any regulatory authority. The Buyer shall indemnify and keep indemnified the Company in full against any and all liability, loss or damage of any kind which the Company might suffer as a result of the Buyer’s failure to comply with this Condition 10.3 or arising out of or connected with the application or use of the Goods
10.4 The Company shall not be liable for the Goods/Servicesfailure to comply with the warranty set out in Condition 10.1 if:
10.5 Subject as expressly provided in these Conditions, no Goods, whether or not containing any defect may be rejected or returned to the Company, without the prior agreement in writing of the Company and the Company issuing a return number and such number is quoted with the returned Goods. Any Goods/Services in respect of which the Company is satisfied were supplied with a defect where such defect would not be apparent on inspection shall either be replaced or at the Company’s sole discretion, the Company shall refund or credit the Buyer the price of the defective Goods, but the Company shall have no further liability.
11 Limitation of Liability
11.1 The following provisions set out the entire financial liability of the Company including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Nothing in these Conditions excludes or limits the liability of the Company
11.3 SUBJECT TO CONDITIONS 11.1 AND 11.2
12 Export additional terms
12.1 The Buyer shall be responsible at its own cost for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
12.2 The Buyer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Company, the Buyer shall make those licences and consents available to the Company prior to the relevant shipment.
12.3 The Buyer shall be deemed to have satisfied itself that such Goods comply with the safety regulations of any country or state in which the Goods are to be used outside the United Kingdom and the Buyer shall indemnify and keep indemnified the Company in full for any loss or damage whatsoever which the Company may incur if such Goods do not comply with such safety regulations
12.4 The Goods shall not be used in any country other than for which they were originally ordered without the Company’s consent in writing
12.5 The Buyer undertakes not to offer the Goods for resale in any country notified by the Company at or before the time the Buyer’s order is placed, or to sell the Goods to any person if the Buyer knows or has reason to believe that person intends to resell the Goods in any such country.
13.1 Any information which the Company discloses relating to the Goods, which is not in the public domain at the time of disclosure, shall be confidential and shall not be disclosed to any third party or used by the Buyer to enable the Buyer to manufacture the Goods or use the same as a springboard to develop the Buyer’s own products. The Buyer will use all reasonable endeavors to ensure compliance of this Condition 13.1 by its employees, servants or agents. The provision of this Condition 13.1 survives termination of the Contract (howsoever ended)
13.2 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post, airmail or by e-mail and in case of communications to the Company, to its registered office or email address or such changed postal address or email address as shall be notified to the Buyer by the Company; or to the Buyer, to the registered office of the addressee or to any postal or email address of the Buyer set out in any document which forms part of the Contract or such other postal or email address as shall be notified to the Company by the Buyer. Communications sent pursuant to this Condition 13.2 shall be deemed to have been received two Business Days after posting (exclusive of the day of posting) if sent by prepaid first class post or next working day delivery service, 7 Business Days (exclusive of day of posting), if sent via airmail; or the time of transmission, if sent via email or if this time falls outside business house in the place of receipt, when business house resume. In this Condition 13.2, business houses means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. 1
3.3 Any indulgence granted by the Company to the Buyer and any failure by the Company to insist upon strict performance of these Conditions shall not be deemed a waiver of any of the Company’s rights or remedies nor be deemed a waiver of any subsequent default by the Buyer.
13.4 The invalidity, illegality or unreasonableness in whole or in part of any of these Conditions shall not affect the validity of the remainder of such Condition or these Conditions.
13.5 The Company reserves the right to amend or replace these Conditions from time to time on giving the Buyer written notice as such.
13.6 No Contract is assignable by the Buyer without the written consent of the Company and each Contract is between the Company and the Buyer as principals but the Company may without consent assign or sub-contract all or any of its rights and obligations under a Contract.
13.7 The interpretation and application of every Contract shall be in accordance with English Law and both parties hereby agree to submit to the non-exclusive jurisdiction of the English Courts.
13.8 The parties to this Contract do not intend that any provisions of this Contract will be enforceable by virtue of the Contract's (Rights of Third Parties) Act 1999 by any person that is not a party to it.